Nance v. State

• Decision Date: 11 April 1991
• Docket Number: No. 13-90-269-CR,13-90-269-CR
• Citation: 807 S.W.2d 855
• Court: Texas Court of Appeals
• Parties: Sherry Moore NANCE, Appellant, v. The STATE of Texas, Appellee.

Page 855

807 S.W.2d 855

Sherry Moore NANCE, Appellant, v. The STATE of Texas, Appellee.

No. 13-90-269-CR.

Court of Appeals of Texas,

Corpus Christi.

April 11, 1991.

Juan Martinez Gonzales, Beeville, for appellant.

C.F. Moore, Jr., Dist. Atty., Beeville, for appellee.

Before NYE, C.J., and SEERDEN and HINOJOSA, JJ.

OPINION

SEERDEN, Justice.

A jury found appellant guilty of capital murder and answered special issues on punishment. The trial court entered judgment sentencing her to life in the Texas Department of Criminal Justice, Institutional Division. In twenty points of error, appellant complains about jury selection, the admission of evidence, sufficiency of the evidence, the charge, and prosecutorial statements. We affirm the trial court's judgment.

The evidence shows that appellant shot and killed her ex-husband, Thomas N. Nance, on Monday, July 3, 1989. In June, the victim had divorced her and was awarded custody of their son, Thomas O. Nance. Evidence shows that the divorce was bitter, that appellant contended that her husband had sexually abused their son, and that the Bee County jury awarded the son to his father. The jury let appellant keep the child until the Monday following their decision, which was June 26, but appellant made new claims and gave the child to the Department of Human Services (DHS) in Victoria. On June 29, DHS released the child to Thomas M. and Nelda Nance, the child's grandparents. They and the child's father took him to visit the child's aunt in Pittsburg, Texas, but after phone calls from appellant, the whole family returned to the Beeville area.

On the day of the shooting, appellant went to the victim's parents' farm, where Thomas N., his sister, Brenda Parr, his parents, Thomas M. and Nelda Nance, and Thomas O. were. A gun battle in the house left Thomas N. dead, Thomas M. paralyzed, Brenda wounded, and appellant seriously wounded. The battle ended with Brenda and Nelda sitting on appellant.

Evidence offered by the State shows that Thomas M. encountered appellant after noticing her bag by his tractor. She held a gun on him and used him as a shield to approach the house (thus kidnapping him), and made him help her enter. When he broke through the boarded door, he stepped in and came face to face with his son, Thomas N., at whom appellant then fired. The charge required the jury to find that appellant intentionally killed Thomas N. with a handgun while committing or attempting to commit kidnapping or aggravated kidnapping of Thomas M.

By appellant's account, she parked on a back road to hide her car, walked two miles through a pasture, and hid in a barn, hoping to seize and abduct her son. She said that later, after moving to a tractor shed, she saw her ex-husband get a gun from his parents' car and load it. She then loaded her gun, because she "knew by him going out and getting his gun that he intended to shoot me if he saw me." As she was loading her gun, Thomas N.'s father, Thomas M. Nance, approached, and she hid, but left her ammunition bag by the tractor wheel. When he picked it up, she asked him to hand it to her, asked to talk to her ex-husband, and said if he didn't let her she would persist in her claim that her ex-husband molested their son, Thomas O. She said he appeared angry. She said the gun was in her hand but she stuck it in her bag, and that Thomas M. told her that Thomas N. knew she was there and she would never leave alive. She walked to the house behind him because she was afraid of him, and she also feared being shot through a window. She said Thomas M. tried to get in at the front, and then the side, but the doors were locked. He tried to kick the side door in, then she shot at the lock ineffectively, and then she asked him to try again. Then she said she was shot in the chest. She said she looked at her ex-father-in-law, Thomas M., and said, "The son of a bitch shot me," then looked up at the door and saw Thomas N. and his gun and started shooting. She said after it appeared that Thomas N. jumped away for cover, Thomas M. rushed in the door, and that she jumped to shut the door. She said she thought Thomas N. was hiding ready to shoot again, and knelt to reload her gun on the steps, then jumped in and fired.

Appellant complains of the charge by points one, two, four, five, six, and seven. When an appellant claims jury charge error, the appellate court must determine whether the charge was erroneous, and if so, whether the error harmed the accused. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). The charge should instruct the jury on the law applicable to every theory within the scope of the indictment which the evidence will support, whether favorable to the State or to the accused. Garcia v. State, 791 S.W.2d 279, 281 (Tex.App.--Corpus Christi 1990, pet. ref'd); Goodwin v. State, 694 S.W.2d 19, 27 (Tex.App.--Corpus Christi 1985, pet. ref'd), appeal after remand, 725 S.W.2d 314 (Tex.App.--Corpus Christi 1986, no pet.). The trial court is not required to charge on an issue the evidence does not raise. Mora v. State, 797 S.W.2d 209, 211 (Tex.App.--Corpus Christi 1990, pet. ref'd); Banks v. State, 624 S.W.2d 762, 765 (Tex.App.--Houston [14th Dist.] 1981), rev'd on other grounds, 656 S.W.2d 446 (Tex.Crim.App.1983).

We use a two-step analysis to determine whether a trial court erred in failing to submit a charge on a lesser included offense. First, the lesser included offense must be included within the proof necessary to establish the charged offense. Second, some evidence must show that if the defendant is guilty, she is guilty only of the lesser included offense. See Lugo v. State, 667 S.W.2d 144, 146 (Tex.Crim.App.1984). A charge on a lesser included offense is not required unless the evidence raises the issue that, if guilty, a defendant is guilty only of the lesser offense. Creel v. State, 754 S.W.2d 205, 210 (Tex.Crim.App.1988); Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985); see Sattiewhite v. State, 786 S.W.2d 271, 288 (Tex.Crim.App.1989).

By point one, appellant cites as error the trial court's refusal to give a voluntary manslaughter charge, and by point two, she claims that this omission shifted the burden of proof in violation of the U.S. and Texas Constitutions. By point five, appellant argues that the trial court erred in not defining "voluntary manslaughter," "sudden passion," and "adequate cause" in the charge.

Tex.Penal Code Ann. § 19.04(a) (Vernon 1974) defines voluntary manslaughter as causing the death of an individual under circumstances that would constitute murder under § 19.02, except that the actor "caused the death under the immediate influence of sudden passion arising from an adequate cause." An instruction on the offense of murder is fundamentally defective if it fails to properly place the burden of proof on the State to disprove sudden passion when a defendant is charged with murder and entitled to a jury instruction on voluntary manslaughter. Shanks v. State, 710 S.W.2d 585, 586 (Tex.Crim.App.1986); Owens v. State, 786 S.W.2d 805, 808 (Tex.App.--Fort Worth 1990, pet. ref'd); see Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App.1991).

To show entitlement to a voluntary manslaughter charge, appellant must establish that some evidence showed that she was guilty only of voluntary manslaughter. She cites evidence of her belief that Thomas N., the victim, had sexually assaulted their son, Thomas O. She further recites evidence that when she learned that Child Protective Services had released the son to her in-laws, she went to the farm near Beeville to try to kidnap him, on the advice of an attorney. She testified that no one was at the farm, that she made frantic phone calls, that she learned that the in-laws and Thomas N. had taken the child to Pittsburg, Texas, where the victim's sister lived, that appellant tried to get Child Protective Services to take the child from its father, and that she finally became hysterical and trashed the farm house, even firing a shot in it. She testified that she tried to drive to Pittsburg, had car trouble in San Antonio, rented a car and had a wreck near Tyler, called Pittsburg, and found out that the family had returned to Beeville. She then took a bus to San Antonio, picked up her car, and drove to Beeville. She also testified to the events at the farm as described above. She testified that she was in fear of the victim, and portrays the events of the several days as a continuum during which she was angry, afraid, upset, and even hysterical.

The statute allows the immediate influence of sudden passion, if arising from an adequate cause, to mitigate the severity of the crime. Tex.Penal Code Ann. § 19.04(c) (Vernon 1974) defines adequate cause as "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Not all testimony of anger or fear entitles a defendant to a voluntary manslaughter charge. See, e.g., Owens, 786 S.W.2d at 808; Miller v. State 753 S.W.2d 473, 476 (Tex.App.--Austin 1988, pet. ref'd).

Tex.Penal Code Ann. § 19.04(b) (Vernon 1974) defines sudden passion as "passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." The sudden passion must be directly caused by and arising out of provocation by the deceased at the time of the offense. Passion solely the result of former provocation is insufficient. Marras v. State, 741 S.W.2d 395, 405 (Tex.Crim.App.1987); Hobson v. State, 644 S.W.2d 473, 478 (Tex.Crim.App.1983). Evidence that a defendant was enraged or terrified before acting does not mandate a voluntary manslaughter charge unless evidence also shows that the emotions resulted from provocation at the time of the offense. Marquez v. State, 725 S.W.2d...